Nov 19, 2015 Memorialize beneficial agreements with prosecutors

One day a prosecutor agreed to dismiss my criminal defense client’s charge for completion of X number of community service hours within two months.

It is a good thing I got this in writing, signed off by the prosecutor. When I returned to court with my client on the dismissal date, a different prosecutor was present, seemed to question his colleague’s judgment in offering the dismissal in the first place, but was bound to his predecessor prosecutor’s signed agreement to dismiss for the community service completion. The case got dismissed.

Consequently, whenever a prosecutor or other opponent agrees to something that is favorable to you, seriously consider putting it in writing. Ideal is for the opponent to sign off on the writing. The next best thing is to memorialize the agreement soon after it takes place, and to prove delivery of the memorialization (for instance by faxing or getting a receipt date stamp or signature from the opponent’s reception desk, coupled with an email as well) saying something along the lines of: “This confirms that on _______, 2015, you agreed as follows in the above-referenced case: ______________. Unless I hear otherwise within two weeks from the date of this letter, I will assume that you agree with this letter’s characterization of the foregoing agreement.”

By getting the memorialization letter delivered right away, the risk is reduced that the addressee will claim not recalling making such an agreement, which is too common a risk; and the addressee is more likely to agree with the memorialization’s characterization unless s/he responds within the letter’s stated deadline with any correction or clarification to the memorialization. By having proof of delivery of the memorialization, the opponent’s colleagues will be more likely to accept the memorialization than if none had been delivered in the first place.

How quaintly wonderful were the days when opponents could simply agree on matters with a handshake and have the handshake bind them. Too many things can get in the way of that today. One of the handshakers may leave town or pass away, the agreement may be too detailed or complex to leave to memory, and the above-referenced scenarios also can intervene.

Put beneficial agreements in writing, and sleep more soundly as a result.